OppOrtunity and risk: uncOvering and Winning the distressed deal

Transcription

Best Practices of the Best M&A Dealmakers
Merrill DataSite® and The M&A Advisor Present
Opportunity and Risk:
Uncovering and Winning
the Distressed Deal
Valuable Guidance from the Most
Active Middle Market M&A Practitioners
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“There aren’t many deals out there and if my clients are going to
commit the time, they want to know that they are going to win.
The trends that we are experiencing in distressed investing strategy
today clearly reflect this ‘no holds barred’ approach to turnaround
dealmaking.”
- Nancy Peterman, Chair of the Chicago
Business Reorganization & Financial
Restructuring Practice, Greenberg Traurig
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INTRODUCTION
rawing on the experience and expertise of the “best in class”
dealmakers, The M&A Advisor, together with the leading provider
of virtual deal management services, Merrill DataSite®, publishes the
quintessential dealmakers guide series - The Best Practices of The Best M&A
Dealmakers. Profiling the proven strategies and unique experiences of the
leading M&A practitioners, The Best Practices of The Best M&A Dealmakers
series is distributed in regular installments for M&A industry professionals
in both print and interactive electronic media. Previously published features
and chapters are also available in the online library of Merrill DataSite and The
M&A Advisor. We are pleased to present “Opportunity and Risk: Uncovering
and Winning the Distressed Deal,” which discusses best practices for buyers
of distressed companies or its assets. Focused on best practices from both the
buyer’s and seller’s perspective, this installment features candid interviews with
leading practitioners and analysis of the most current trends in restructuring
and reorganization.
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Opportunity and Risk: Uncovering and
Winning the Distressed Deal
Introduction
re today’s distressed investors encountering a different set of
opportunities and risks in the M&A deal market? Certainly, deal flow
continues to be slow as distressed companies take advantage of excess
liquidity and lower interest rates to solve their problems. Some deal experts
would contend that this climate of excess liquidity has resulted in a tight deal
market, in which a handful of viable targets are attracting creative negotiating
and multiple bidders.
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However, not all dealmakers subscribe to this opinion. According to Bill Repko,
a leading expert in the Restructuring world and Co-Founder of the Evercore
Partners’ Restructuring and Debt Advisory Group, we may be experiencing a
tighter deal flow for some of the right reasons. “There is no question that ‘amend
and extend’ and the ability to refinance ahead of impending maturities is a factor,
but I don’t think it’s the governor of what is going on,” he said, “I think we’re
in a recovery, even though people don’t like the fact that we’re growing slowly
and unemployment is still high. The fact of the matter is we had a “near death”
experience. The recovery period is going to be long, but I think it’s on track.”
That’s the good news – we’re heading back to a better state of financial health.
Nonetheless, investors are finding that good opportunities are hard to come by.
So where should distressed investors look for potential targets? One approach
is to focus on industries in distress; another is to identify specific operational
challenges that are forcing companies to reorganize. Yet another is to monitor
negative cash flow and other financial signals.
In previous chapters, we provided an overview of the best practices employed by
the best distressed dealmakers to identify target opportunities.1 As a follow up,
in this chapter, we’ll focus on the characteristics of the current distressed M&A
market and how leading dealmakers2 are identifying value. On the following
pages, you’ll find insights into the following areas:
I. Uncovering the Opportunities in Today’s Environment
II. Challenges for Buyers and Sellers
III. Creative Approaches to Ensure Winning the Deal
IV. A View Ahead
1. See “Part 5: Special Feature on Distressed Investing, Restructuring & Turnarounds,” Best Practices of the Best Dealmakers, Merrill DataSite® and
The M&A Advisor, 2013.
2. Many of the observations found here were also shared by dealmaking experts and recorded live at a recent M&A Advisor Distressed Investing
Summit held in Palm Beach, Florida. For more information, please contact M&A Advisor.
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Today’s distressed investors have to dig deeper to find
potential targets
I. Uncovering Distressed and Turnaround Opportunities
Focus on Industry
Certainly, many companies have been able to avoid restructuring through
access to cheap capital, a trend that definitely has impacted the pipeline of
restructuring opportunities available to buyers. As a result, today’s distressed
investors have to dig deeper to find potential targets. One strategy is to
focus on declining industries. According to IBISWorld, the world’s largest
independent publisher of U.S. industry research, an industry is “dying” if fits
three of the five following criteria:
• The sector is growing slower than the GDP.
•There is a slow decline in the number of industry players. M&A activity has slowed and there are no new entrants entering the market.
•The product has become stagnant; there are no new product or service developments.
•There are no new technological changes. There is no R&D money being invested to advance the product through technology.
•There are no new consumer markets or demographic groups being
targeted and there is a drop-off in their current markets.
Based on these criteria, IBIS World’s analysis yielded the following industries
in decline:
• Printing and paper products
• Lawn and garden products
• Family recreation centers
• Consumer and trade product manufacturing
• Apparel and fashion accessories manufacturing
So if you found a company that is a potential distressed investment, what can
you do to help turn it around? Following are some strategies that have worked
in identifying opportunities in such declining industries.
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Realigning a Product Line in Decline
In some instances, investors have found success by identifying a company
in a declining industry and transforming some of its assets to produce new
products that will allow them to enter new markets. For example, Michael
Fieldstone, a partner at private investment firm Aterian Investment Partners,
has seen this strategy work well in the paper products industry.
“The demand for traditional printing and paper products may be in decline
but the need for sanitary paper products has increased, particularly in Asian
countries,” Fieldstone said, “We’ve seen some managers of plants make a
capital expenditure investment to switch over some of the product mix and
export more sanitary products to China and other Asian countries.” According
to Fieldstone, these companies are capitalizing on the assets being on the
ground in the U.S., and also on cheaper U.S. energy costs. “For example,
natural gas, depending on where you are and what the conversion rates are,
fell below $3 last year and could be $3 to $4 this year,” he said, “In BTU, if you
get the same natural gas in Japan, it’s above $15.”
Finding Opportunities Where the Government is an Ally
The bankruptcy case of Manistique Paper highlights another potential angle.
As the major employer in a remote regional area, when Manistique Paper
began having problems, they became the community’s problems. As a result,
the local government and community were motivated to work with investors
to find a viable deal that served the interests of all parties. Noted Sharon
Levine, a partner at business law firm Lowenstein Sandler LLP, “what we’ve
seen is that when there are hard manufacturing assets in remote geographical
areas in the U.S., there’s opportunity often at the price point the purchaser
wants to pay because of the government subsidies.”
In these cases, there is an opportunity to garner financial support from
the government if the deal creates jobs or contributes to the economic
continuation of a specific area. “So for example, with Manistique, there was
a lot of government involvement and government subsidies,” said Levine,
“When it came to the exit financing, the acquirer actually bought the assets
with very little money down because the debtor in possession (DIP) lender
became the exit lender. However, they wanted to reduce their exposure, so the
local government actually funded half of the facility.”
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When an industry sector is dying or becoming weaker, people
can become overly pessimistic about its prospects
Although this scenario highlights a troubled company in a declining industry,
it may also be a good strategy in healthy sectors where companies are primary
employers in remote geographical regions.
Looking Beyond the Pessimism
“Sometimes when an industry sector is dying or becoming weaker, people
can become overly pessimistic about its prospects,” said Rob Kampfner,
partner, Financial Restructuring and Insolvency Group for international law
firm White & Case, “That’s what happened with Six Flags Entertainment
Corporation.” However, by avoiding assumptions and digging deeper, value
can be found in troubled companies.
According to Kampfner: “When Six Flags filed for Chapter 11, it had $1.1
billion of senior bank debt. It had $400 million of bonds at the operating
company level and it had $800 million of bonds at the parent level. The
company came in with a prearranged plan of reorganization with their
lenders that would basically wipe everyone out but the lenders and give
the company to the lenders, based on an evaluation that took place right
after Lehman and the Mexico SARS scare, a health scare that basically
shut down Mexico, where one of the company’s parks was located. There
was no revenue coming out of that park for that month, so they put in a
low-ball valuation, and tried to squeeze everyone out and convince the
bankruptcy court that there was literally no value in this company.
The bondholders at both levels immediately smelled a rat. The SFO
bondholders attempted to basically take out the banks and take over the
company. But our clients, the bondholders at the parent level, thought
that even that wasn’t enough value and that we could, in essence, take out
both the banks and the bondholders and add more value to the estate.
So we ended up having a contested confirmation hearing. We raised $1.2
billion of new debt to take out the old debt and we raised $750 million
in a rights offering. We had to fight management for the right to do that,
but ultimately we were successful and today Six Flags is making money
hand over fist and doing very, very well. The message there is sometimes
people get too negative. If you have a vision and your constituencies are
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ready to step up, there’s a lot of opportunity, even in a dying industry.”
Identifying Troubled Companies with Good Brands
In many cases, a troubled manufacturer’s brand may be of more interest to
investors than its other assets. The unwinding of Hostess Brands, Inc. is an
excellent example of the power of the brand. When the 82-year-old company
filed for bankruptcy in January 2012, it cited $982 million in assets and debt
of $1.43 billion. Experts painted a dismal picture of the company’s valuation.
However, the company’s ability to monetize its brand has yielded surprising
results. With 30 brands, 36 plants and various other assets, the bankruptcy
has attracted multiple bidders who are interested in
their iconic brands. According to Amy Edgy Ferber,
partner at global law firm Jones Day, who is serving
as debtor’s counsel for Hostess, “There has been so
much interest that the company’s liquidation value
may now be as much as twice what we actually
Amy Edger Ferber
Partner, Jones Day
thought at the onset of the case.”
Hostess is one of many examples where distressed investors have identified
troubled companies with a powerful brand they can mine for value. Others,
including the Sharper Image, Kodak and Polaroid have been acquired
primarily for the potential value of the brand. Sharper Image, along with
bankrupt brand names Linens ’n Things and Bombay, has been purchased by
a partnership of two liquidators, Hilco in Toronto and Gordon Brothers in
Boston, for about US$175 million.3 The Sharper Image name is already on
new merchandise that appears in Macy’s, JCPenney and Bed Bath & Beyond.
Linens ’n Things is selling through a website. Bombay is expected to become
a line of furniture. The payback? Jamie Salter, former chief executive of Hilco,
“predicted a billion dollars a year in sales for Sharper Image and Linens ’n
Things in each of the next five years,” according to The New York Times.4
Sometimes, a brand that has lost its luster in one country may still offer
significant value by attracting buyers from other parts of the world. For
example, when Penthouse magazine filed for bankruptcy in the U.S., the
company found little interest among local investors. However, the results
were very different when international bidders entered the market, according
to Levine, whose firm served as committee counsel for Penthouse. “At the
beginning of that case, the bonds and the debt were trading at well below
par, maybe even less than fifty cents on the dollar. A lot of people traded out,”
3. Amy Zipkin, “Brand Names Live After Stores Close,” The New York Times, 4/14/09.
4. Barry Silverstein, “After the Fall: What Really Happens to Bankrupt Brands,” www.brandchannel.com, 9/7/09.
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For companies in distress, establishing the brand’s value to
potential bidders can be extremely challenging
she said. “However, at the end of the day, the Penthouse name was sold to a
website in China, and the return to creditors was 100 cents on the dollar plus
interest.
However, arriving at a good valuation is far from easy, and rarely do the
numbers work out as in the case of Penthouse. For companies in distress,
establishing the brand’s value to potential bidders can be extremely
challenging. Indeed, most brand-valuation models are based largely on
forecasting future cash flows based primarily on the brand’s current value. As
a result, these methods tend to underestimate potential value by repositioning
and extending stale and mismanaged brands.5
Business leaders who have a good understanding of the strength of their brand
are in a much better position to use that strength to navigate the company to a
more stable position. Readers Digest, for example, has built the staying power
of its brand into its strategy to file Chapter 11 bankruptcy to reduce its debt
load. As a recent Bloomberg article noted, “Exploiting Reader’s Digest’s iconic
brand is the latest strategy for its private equity owners, who put the 91-yearold publisher into bankruptcy to shed $465 million in debt as consumers
shift to electronic media.” While acknowledging the transformation of print
media to digital media, the company’s messaging is focused on its position as a
strong brand that has value now and in the future. Bankruptcy, as this point, is
simply a vehicle to shed debt and accelerate their transformation.
It is likely that brand equity will continue to rise in the estimation of distressed
investors. As brand consultant Barry Silverstein noted, “In times past, a
bankrupt brand might have been abandoned. But today, bankrupt brands
represent a new business opportunity for companies to acquire a well-known
name for below-market value and revive it. With the expense of launching a
new brand, it may in fact be cheaper to keep a bankrupt brand going, as long
as it can remain viable, fresh and current.”6
5. Alexander Chernev, “How Much is a Twinkie Worth?” Bloomberg Businessweek, 12/6/12. http://www.businessweek.com/articles/2012-12-06/
how-much-is-a-twinkie-worth
6. Timothy John Carter and James F. Wallack, “Buying Brands Out of Banrkuptcy,” www.retaillawadvisor.com, 4/4/12.
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Other Areas of Opportunity
Of course, deal experts point to companies across all industry sectors in the
middle market as an important source of potential opportunities. This is
because, for many public and privately held companies in this group, access
to capital from traditional lenders remains out of reach. As a result, many
companies are taking the steps to sell assets and restructure operations and
debt in order to avoid a court-mandated sale at a later date. To gain a sense of
where potential targets may emerge, many investors look for signs of negative
cash flow and leverage signals, according to report by Schulte Roth & Zabel.
According to the report, which was based on feedback from private equity
practitioners and hedge fund investors, “Respondents overwhelmingly use
negative cash flow as their main indicator that a company or asset is distressed;
51 percent also use leverage signals. The two indicate a company is unable
(or nearly unable) to make regular debt payments or refinance approaching
maturities, which are highly likely to trigger distressed sales.”7
Additionally, deal experts point to several industries that are not necessarily
in decline but are facing challenges in moving forward. In the Schulte, Roth
& Zabel survey, energy, and industrials and chemicals were the top two
sectors respondents identified as offering the best opportunities for distressed
acquisitions both within and outside the U.S. Additional sectors were cited by
other deal experts.
For example, Durc Savini, managing director and head of the restructuring
and recapitalization group for investment banking advisory firm Peter J.
Solomon Company, identified three additional sectors. “Having looked closely
at the composition to debt out there by industry sector and then by rating, it’s
clear that the most risk resides in three sectors – media and entertainment,
technology and healthcare,” he said, “For these entire sectors, when you look at
the average rating of debt issue and debt outstanding,
and whether or not they’re on credit watch for
downgrade, these sectors over-express in terms of
high risk. As a result, these companies may be forced
to sell non-core assets or ultimately go through a sale
of the company in its entirety.” In Savini’s view, these Durc Savini, Managing Director,
Peter J. Solomon Company
are the sectors for investors to focus on.
7. Noam Noked, “2012 Distressed Investing M&A Report,” Harvard Law School Forum on Corporate Governance and Financial Regulation, posted
1/10/2013.
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There’s not a lot of time in bankruptcy anymore for any kind of
operational restructuring or the fixing of business problems
II. Challenges For Sellers and Buyers
Numerous dealmakers concur that in today’s market, it’s not unusual for
multiple investors to be bidding on the same asset. This can represent both
opportunities and risks for both buyers and sellers. Following are some areas
of consideration:
Dealing with Unfamiliar Investors
Experienced dealmakers are well versed at researching potential bidders’
behaviors and they do their homework to understand bidders’ behavior on
previous transactions. This information is part of the decision making process
in determining who wins the deal. However, with the influx of international
investors from emerging countries into the U.S. distressed market, sellers
need to do all they can to vet unknown bidders. Otherwise, they may
find themselves dealing with unforeseen actions that can have long-term
consequences. Noted Nancy Peterman, shareholder and chair of the Chicago
Business Reorganization & Financial Restructuring Practice for law firm
Greenberg Traurig, “This past year we had a Chinese-based buyer win the deal
and then renege. Trying to actually enforce the sale to get it done or recover
some damages, because it did cause severe damage to the price on a goforward basis, was next to impossible.”
One best practice for sellers when encountering unknown international buyers
is to seek advice from an advisory service with proven experience and vetted
contacts in the buyer’s native locale. This approach should help sellers gain
intelligence on unknown parties.
Dealing with Compressed Bankruptcy Timeframes
Another challenge, particularly for companies in distress, lies in working in an
increasingly compressed time frame that is becoming the norm in bankruptcy
filings. The Chapter 11 bankruptcy process may have been intended as a means
to allow troubled companies to solve their operational and financial problems,
but the process has changed considerably since its inception. Bankruptcy code
amendments made in 2005 have yielded a process that allows for little time in
court to help the debtor identify ways to solve its problems.
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“The trend now is toward having a deal worked out with most of the creditors
beforehand, then filing bankruptcy to implement the solution,” said Kathryn
Coleman, Partner at law firm Hughes Hubbard
and Reed, “There’s not a lot of time in bankruptcy
anymore for any kind of operational restructuring or
the fixing of business problems. It’s really becoming
more of a tool to fix financial problems such as too
much debt or maybe some unfavorable contracts
Kathryn Coleman, Partner,
with labor. Those kinds of things are being dealt with Hughes Hubbard and Reed, LLP
first, before the filing.”
“The problem with that, in my view as a company-side lawyer,” she continued,
“is that quite often the lenders are dictating every item in the case, and there is
no room for creativity or flexibility or for value to rise on it is own. The value
is determined largely by the creditors at the beginning of the case, and then
hacked up in accordance with the way bankruptcy law works, which is secured
creditors first, then unsecured creditors and then finally if there is anything
left, back to old equity.”
Peter Kaufman, co-founder and president of investment bank and financial
advisory firm the Gordian Group, believes that parties are too reliant on
the standard strategy of simply allocating value along the value waterfall
rather than finding ways to allocate value for those beyond it. “There are a
lot of creative strategies that can be employed if you are interested in doing
something ‘out of the box,’” he said. “One thing you want to do is try and get
liquidity; if you’re the debtor and interested in old equity, you want to try to
get sufficient liquidity to be able a fight a vigorous fight in Chapter 11. You
also want to be prepared to go to the creditors with ‘carrots’ in addition to
‘sticks.’ That is something that we at Gordian love to do. We are a lot more
comfortable if our clients’ needs dictate coming up with sticks as well as
carrots to get creditors to do what our client wants.”
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It’s more important than ever to focus on identifying the
potential financial and legal risks relating to fraudulent
activities in any target
Deal Notes
Creative Thinking Yields Stellar Results for a Distressed
Company and Old Equity
Troubled companies can be pulled back from the edge even in the most dire situations
when creative thinking prevails, as this case study shared by Peter Kaufman of the
Gordian Group illustrates:
“Ramsey Industries, a portfolio company of Gridiron Capital, found itself in a downward
spiral as a result of the 2008 economic downturn. The company could no longer support
its debt load of $100 million as revenues fell from $100 million in 2007 to $50 million in
2009, and EBITDA fell from $20 million in 2007 to nearly zero in 2009.
Ramsey was in default under its senior secured and subordinated debt facilities. We were
called in by the company’s private equity sponsor (“Old Equity”) to help negotiate with
lenders on behalf of the private equity firm. Our challenge was how to affect a meaningful
recovery for Old Equity. For starters, we needed to get Old Equity a meaningful seat at
the table notwithstanding that Old Equity was way out of the money at that juncture.
The situation was further complicated by the fact that Old Equity was not in a position to
make a new capital contribution.
We were dealing with a situation where negotiating parties couldn’t be farther apart in
their desired goals. To get the results we wanted, we knew we had to convince the lenders
that our desired outcome was also in their best interests. We achieved this by laying out
several alternative credible strategies (aka, the “sticks”) that, were we to implement them,
would be even less beneficial to them. By applying some creative tactics, we were able
create a meaningful seat at the table for the sponsor.
We were thus thereafter able to help negotiate a transaction on behalf of Old Equity
that included a 50 percent reduction in total debt from $100 million to $50 million.
Old Equity received 5 percent outright of the reorganized Company’s equity and equity
allocations to Old Equity once the banks receive a full recovery on their restructured $50
million principal amount. Based on very achievable valuation levels, Old Equity could
claw back to 34 percent of the Company’s equity. As a result of certain rights provided to
the sponsor in the restructuring, it was able to reacquire a controlling equity stake within
two years of closing at very advantageous pricing, positioning itself to reap the benefits of
the Company’s strong performance.”
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Risks and Ramifications Related to Fraud
For buyers, it’s more important than ever to focus on identifying the potential
financial and legal risks relating to fraudulent activities in any target they
are considering. Additionally, as businesses become more global in terms of
adding international suppliers and customers, investors need to be aware of the
penalties related to cross-border targets. Under the Foreign Corrupt Practices
Act (FCPA), which is enforced by the U.S. Department of Justice (DOJ) and
the Securities and Exchange Commission (SEC), an acquiring company may
be held liable for any prior unlawful payments made by the acquired company.8
Both the buyer and the acquired target will be held liable for their conduct.
One common misconception is that FCPA investigations are limited to large,
publicly held companies trading stock on a U.S. Stock Exchange. In reality,
any publicly held or private company of any size is potentially at risk for FCPA
violations. Another misconception is that companies, not individuals, are
prosecuted. In fact, corporate executives, officers, business partners and sales
agents, as well as other key individuals such as board members, directors and
shareholders can be prosecuted and face severe civil and criminal charges. In
recent years, cases involving individuals made up more than 60 percent of the
investigations.9
The potential for fraud is high in troubled companies, as they are often
operating in an environment that is ripe for poor decisions. “You have to bear
in mind, these are often activities borne out of desperation as the company is
going through a downward spiral,” said Thomas D. Hays, III, CTP, founding
principal of turnaround management firm NHB Advisors, Inc., “You end up
seeing a lot of good people doing a lot of bad things as they are trying to save
the company and protect jobs.”
According to Christopher L. Picone, President of turnaround advisory firm
Picone Advisory Group, LLC, irregularities are occurring (or at least being
discovered) more frequently these days. “We are seeing a higher occurrence of
negligence/fraud in distress situations. These irregularities generally show up
as failures to disclose certain items, overvaluations, undervaluations, the need
to restate financial statements, etc.,” he said, “In your due diligence process,
you really have to look beyond the company’s financial statements as they
are presented to you, because you can’t always depend on the integrity of the
financial statements.”
8 David S Krakoff, James T. Parkinson and Kristy L. Balsanek, “Foreign Corrupt Practices Act: FCPA Due Diligence in the Context of Mergers and
Acquisitions,” Bloomberg Corporate Law Journal (2009): 1.
9 “Foreign Corrupt Practices Act: Four Practical Steps to Minimizing FCPA Risk in Cross-Border M&A,” Merrill Corporation.
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A company that can’t control its own labor costs because of
a union is likely going to be penalized and may have to be
restructured
Additionally, a Certified Turnaround Professional can detect areas of potential
fraud and take steps to address the situation before the asset is put up for sale.
While turnaround professionals are trained to evaluate operations to identify
issues, noted Hays, sometimes they are also encountered in routine business.
Regardless of the timing of the discovery, it has to be dealt with swiftly and
decisively. In one situation, he noted:
“I had just taken over as CEO and was signing checks, when I came across
a check for $30,000 written to a company I didn’t recognize. When I probed
deeper into the matter, it ultimately turned out to be a kickback to the
president of a vendor, funneled via check to his
private company. This came to light at the very worst
time, when we were trying to save this company.
We immediately had to take steps to isolate the
individual, do background work to make sure no
Thomas D. Hays, III,
other payments had gone out, and clean up the
Founding Principal,
process before we could move ahead.”
NHB Advisors, Inc.
Buyers would do well to augment their due diligence efforts with experts
like Hays and Picone, who as certified turnaround experts are sensitive to
identify red flags. Knowing the risks upfront can prevent tremendous legal and
financial consequences downstream. “Financial irregularities tend to impact
earnings,” Picone said, “If a purchase price has been set based on a multiple of
EBITDA or another earnings-based formula, and financial irregularities are
discovered that result in an overstatement of EBITDA or earnings, the buyer
will potentially be paying too much.”
Complications Related to Labor Management Issues
Labor management issues are also becoming a growing challenge for
companies dealing with tight margins and the rising cost of labor. Indeed, for
Hostess Brands, failed negotiations between the company and its labor unions
have been blamed for the company’s bankruptcy filing. Companies and unions
are at a crossroads in which the cost of maintaining traditional contracts and
an employer’s ability to support them are at odds. Businesses that cannot
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bridge this growing gap face hard decisions that may include selling of assets,
bankruptcy or the sale of the entire company.
“In today’s world, a company that can’t control its own labor costs because of
a union is likely going to be penalized and may have to be restructured,” said
Larry Lattig, President of advisory firm Mesirow
Financial Consulting, “In dealing with that, you
also have to realize that you have another party at
the table. You don’t have just lenders, unsecured
creditors, federal regulations or whatever caused your
bankruptcy. What you really have is another agenda
Larry Lattig, President,
out there by people that are counting on your firm Mesirow Financial Consulting, LLC
for their income.”
Lattig, however, has seen a major shift in the way labor issues are being worked
out. “In negotiating with unions or discussing their bargaining agreement, one
of the major changes I’ve seen is the reality that ‘we are going to have to make
some concessions here and we’re going to have to figure this out before we get
to court,’” he said.
Although labor management issues are often complicated, in some cases
both parties’ objectives can be satisfactorily met. For example, according
to Kaufman of the Gordian Group, in the case of the American Airlines
bankruptcy, the Transport Workers Union (TWU) was able to build a better
case for itself by taking an “out of the box” approach in negotiations. “We
encouraged the union to negotiate with American on a new deal instead
of letting it go to the judge to decide in an 1113 hearing whether their
contract should be thrown out,” he said, “We also suggested the union should
simultaneously negotiate with other potential acquirers, including US Air,
to try and play them off each other and create a spirit of competition and try
to elevate their status in the case maybe beyond where it by all rights should
have been. That’s worked out really well for them.” Ultimately the airline
and the union came to an agreement, jobs were retained, and the union has
representation in what is now the largest airline in the world.
Joe Geraghty, senior managing director for advisory firm Conway MacKenzie,
has seen negotiations take a positive direction when certain best practices are
followed. “From our point of view, the union is a constituent and you need to
negotiate with them on the front end,” Geraghty said, “From a best practices
standpoint, you achieve the greatest success when you recognize them, of
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Bidders must be mindful that they don’t cross the line
into collusion that keeps the price down
course, and get them into the process early. The second critical factor is to be
able sit down with them and determine what the real essentials are.”
To work effectively with unions, Geraghty also recommends avoiding
negotiations that lead off focusing on the price of labor. “If you start off by
telling union they need a 20 percent reduction in price to remain viable –
that’s not going to work,” he said, “I think the more practical and successful
approach is to shift the focus from the price of labor to the volume of labor.
For example, maybe you can modify collective bargaining agreement in areas
such as work rules that don’t optimize productivity. If you have an interested
buyer who is willing to work with the union and modify the collective
bargaining agreement based on work volume instead of price, I think you can
have some success.”
Based on their experiences, both Lattig and Geraghty believe that some unions
are becoming somewhat more pragmatic, with the focus in on maintaining
jobs.
III. Creative Approaches to Winning the Deal
Today’s buyers are often competing with multiple bidders who are becoming
more and more creative in their offers. “We’re seeing a lot of different and
unique ideas to try to win the deal all because of the fact that there’s not
much out there to buy,” said Peterman, “All of these
trends that we’re seeing are really ways for distressed
investors to try to figure out, ‘Where am I going to
best put myself in a position to actually win that
deal?’ Because there aren’t many deals out there and
if they’re going to spend the time, they want to know
Nancy Peterman
Shareholder, Greenberg Traurig
they’ll come out with that deal.”
Peterman went on to explain how creative the bidding became in a successful
363 sale, on which she was working on the company side: “We had four
bidders show up for our auction – a stalking horse plus three. We had a
strategic bidder that everyone was speculating was going to show up at that
auction and it was kind of driving the private equity fund interest away. One
18
fund’s approach was to offer benefits of intangible value: things like guaranteed
jobs for the employees at one for six months and another plant for three
months, and guaranteed contracts with critical vendors for three months.
These were all sorts of things that the strategic bidder was not sophisticated
enough to react to in the auction. The strategic bid was higher but we
actually went with a lower value bid because of all these intangibles that were
important to the company and the community. We got the judge to approve it.”
Other experts such as Albert Kass, Vice President of Corporate Restructuring
at Kurtzman Carson Consultants, noted other trends. “We’re seeing a
prevalence of 363 sale cases, the ‘GM model’ where you’re quickly taking
the good piece of the company and selling it to some new entity, and the
restructuring really comes out of the pot of money that’s after it,” he said,
“For the investor, it’s really about getting that good piece sold and out of the
restructuring as soon as possible.”
His firm is also seeing a fair amount of debtor in possession (DIP) financing
that actually has dates itself included in the documentation. “In other words,
it will specify that ‘by 30 days you have to have your plan on place and 60 days
you have to have this done,’” he said, “Whether it’s an interest rate bump or
they can pull the financing all together, it really makes for a fast-track Chapter
11. It gives the investors a little more surety as to what’s going to go on.”
Kass is also seeing a fair number of exchange offers with a pre-pack option,
which is basically asking the debt holders to swap that for equity,” he said,
“However, if you don’t get enough of that percentage up front, you’re also
asking them to vote on a pre-packaged Chapter 11. Again, it gets everybody
kind of moving towards the end even before you start the filing. We’re seeing a
larger number of faster Chapter 11s.”
The Place for Consortiums
Buyers of distressed assets have also employed the power of consortium
bidding to their advantage, a trend that dealmakers expect to continue.
According to Steve Shimshak, Partner at law firm Paul, Weiss, Rifkind,
Wharton & Garrison LLP, “Over the last two years we have seen two very
significant examples of consortium bidding in the sale of intellectual property,
involving the sale of patents.” In effect, the group of bidders comes together
and forms an entity that will acquire the assets. The risk, of course, that
bidders must be mindful of is that they don’t cross the line into collusion that
keeps the price down.
19
For restructuring activity to pick up in the U.S., the turning
point will occur when the Federal Reserve Bank eventually
raises interest rates
Shimshak has seen consortiums result in a win-win for both buyers and sellers.
“For example, in the Nortel situation, Nortel knew
who was going to be coming to that auction and was
fully aware of the coalescence of the consortium,”
he said, “They actually encouraged it, because they
were going to have a complement of four bidders,
Steve Shimshak, Partner,
each with the economic power to potentially win the Paul, Weiss, Rifkind, Wharton &
auction.”
Garrison LLP
He continued, “As it turned out, as the auction was ongoing, the bidding got
to the level that two consortiums ended up being formed. Intel and Google
combined with each other, and Apple and Rock Star combined with each
other. It took the bidding to five times the level that had been in the original
stalking horse bid. So one would say, ‘Risk of collusion? What risk?’ You ended
up with a tremendous auction result.”
IV. The View Ahead – Summary
Deal flow may seem slow, but according to some of the industry’s most
experienced experts, it is moving well, as it should be in a recovery. Most
dealmakers expect activity levels in the U.S. and in Europe to remain sluggish
for the foreseeable future. But this may be, as Bill Repko and other veterans of
the restructuring industry point out, the result of a U.S. economic recovery in
progress.
“People are talking about a return to the levels of excess that lead to the
financial crisis, but I am not sure that is true,” said Bill Repko, “The statistics
are pretty good – leverage is pretty reasonable, interest coverage is also pretty
reasonable and we’re seeing the fundamental returns of solid investment
vehicles like CLOs. There is a lot of activity; the rates are very attractive and
people are rushing to do refis, but right now, I don’t see people making stupid
loans.”
For restructuring activity to pick up in the U.S., the turning point will occur
when the Federal Reserve Bank eventually raises interest rates. On the
20
European front, activity will be very limited until the banks holding most of
the distressed assets begin to sell them off.
Nonetheless, the U.S. market will continue to gain the attention of investors
at home and abroad as they seek investments for more aggressive growth. For
distressed investors, the best practice seems to be to focus even more closely
on fundamentals in researching, identifying and evaluating distressed targets.
Equally important, buyers need to be well prepared to compete with multiple
bidders and strike creative deals in order to secure their target.
21
Deal Notes
Outlook for Distressed Investing in Europe
Last year proved to be a slower year than predicted in terms of distressed M&A activity
in the European Union, but opportunities may be on the horizon according to experts
who have worked extensively in Europe. Part of the reason for low deal activity may be
related to dealing with multiple bankruptcy processes in multiple countries.
As Dennis Shaughnessy, Chairman of global consulting firm FTI Consulting, noted,
“Everything’s a little different in the European Union compared to the U.S. Of course,
you’re dealing with multiple countries, but you’re also dealing with about ten banks
that hold the bulk of the assets that are distressed.” He added, “The first steps they’ve
been taking is to try to restructure in their own portfolios the character of the credits.
Remember, most of these banks were founded as merchants banks, so they’re used to
owning shares in the companies they lend to.”
Given these circumstances, it’s not surprising that these banks have tried to forestall
the reality of accepting lower valuations to shed non-performing assets. However,
Shaughnessy and other dealmakers see more opportunity for distressed investor in the
coming year, based on changes that have taken place over that past 12 to 18 months.
Positive Changes in the Bankruptcy Process
Several EU countries have taken steps to modify their bankruptcy laws in ways that
should somewhat simplify the process for distressed companies and buyers of their
assets. According to Corinne Ball, Partner and Co-Head of the Global Business
Restructuring and Reorganization Practice, for Jones Day,
both Germany and the UK have made positive steps that
should help to remove bottlenecks in the process. Ball, who
spends half her time in in Europe, noted, “The good news is
that the legal and advisory framework has changed a lot in
the past 18 months and continues to change; it’s beginning to
Corinne Ball
look more and more like Chapter 11.”
Partner, Jones Day
Changes in Germany in particular are already having an impact on activity.“Until last
April, you couldn’t convert debt to equity. Trustees were appointed by courts. Now,
trustees are selected by the creditors,” she said, “We’ve actually done our first prepackaged, self-administration case in Germany; we were able to get an exterior case in
and out in 60 days.” Ball also noted that her firm is seeing more Chapter 11 like moves
in the UK, which has attracted companies from countries like Spain and Europe to
complete their restructuring in in the UK.
22
U.S. Investors Getting a Warmer Welcome
Experts have also noted that the EU investing community is more open to U.S. and other
foreign investment than in past years. Several factors have helped this change come about.
From a purely financial perspective, the banks are looking to outside capital sources to fund
restructurings. “Traditionally if you go back three, four, five years, the European banks
were willing to do their own restructuring and fund their own issues,” said Scott Edwards,
Managing Director of private equity firm Sun Capital Partners, “What we’re seeing now in
the last year and looking forward is that due to the capital requirements being imposed on
banks across the EU, they’re less willing to fund. Therein lies the opportunity.”
Another reason EU banks may be more amenable to outside sponsors is that it gives them
an effective means to deal management issues, often a sensitive aspect of restructuring in
European countries. “We just put together a $4.5 billion deal involving two banks that held
all the paper,” said Shaughnessy, “They were looking for another source of sponsor capital.
Also, they didn’t want to get rid of the management – they were looking to the sponsor to
come in and do that. There is a great reluctance on the part of European banks to try to
move management out.”
Part of their reticence may due business reasons and cultural reasons , but it may also be
due to legal restrictions. “In some EU countries, the banks are prohibited from interfering
with management and appearing to be in control,” said Rene-Pierre Azria, President
and CEO of advisory firm Tegris Advisors, “That’s why the banks have generally moved
completely on the side of being passive until the companies have no way other than filing
for what used to be bankruptcy, and more and more now, thank goodness, is something
akin to our insolvency proceedings here in the U.S.”
Best Practices for Distressed Investors
While dealmakers Ball and Shaughnessy see opportunity for distressed investors in Europe,
they also warn investors to do their research before they enter the market. “Many distressed
investors this past year were burned terribly because they did not understand that in the
UK, the insolvency practitioner (IP) is the arbitrator of good taste – the judge, jury and
the executioner,” said Ball, “So even if you thought you bought the Fulcrum security, in an
English situation there is no valuation of hearing; there’s very little notice; you don’t know
what the testing is for a sale. Inexperienced U.S. investors did not do well in in British
insolvencies because they kept thinking they would have an opportunity for valuation or
new money or bidding. It just doesn’t work that way.”
Edwards noted that his firm, Sun Capital, has had some successful investments in the UK
10
by buying right before administration. By investing the time to understand how distress
and bankruptcies are handled by each country, they’ve been able to identify and win viable
targets.
10. As a legal concept, administration is a procedure under the insolvency laws of a number of common law jurisdictions. It functions as a rescue
mechanism for insolvent entities and allows them to carry on running their business. The process – an alternative to liquidation – is often known as
going into administration. A company in administration is operated by the administrator (as interim chief executive) on behalf of the creditors as a going
concern while options are sought short of liquidation. These options include recapitalising the business, selling the business to new owners, or demerging
it into elements that can be sold and closing the remainder. Administration differs from receivership in that it is usually carried out by a judicial authority,
whereas receivership is called in by the bank or creditors involved. http://en.wikipedia.org/wiki/Administration_%28law%29
23
Seek Advice – or Strong Partners
Expert dealmakers also advise any U.S. investor new to the EU distressed M&A market
to avoid going it alone. One strategy is to engage a U.S. advisory firm with “feet on the
ground” in the target’s country. Another is to partner with a European company that has
the expertise necessary and investment objectives that are in alignment. When dealing
with EU distress opportunities, investors need to understand each country’s unique
operating rules and their relationship with the other EU countries. A European partner
can be extremely helpful in dealing with these nuances. “Europe is a essentially a club,”
noted Shaughnessy, “The interdependence, the codependency is so extreme that I do not
think the countries can afford their self-interest to go too far from each other.” This should
be kept in mind, combined with the fact that, ten major banks hold most of the distressed
assets.
Focus on Tier I and Tier II Opportunities
Another piece of advice for EU distressed investors is not to focus on the large or high
profile opportunities. In cases where the brand has global recognition, such as Peugeot, the
government is likely to have a very definite opinion in the company’s future. Instead, more
amenable deals may be found in the Tier I or Tier II suppliers who support such national
brands. “I would drop my sights to the suppliers because it’s getting easier to negotiate
those deals,” said Shaughnessy, “Also, this group is not finding a willing lending group via
the usual channels, so outside liquidity is going to be able to cut a pretty good deal.”
Be Patient
While deal experts are see positive change in the way that restructuring and bankruptcies
are being handled by countries in the EU, they are also quick to remind investors to
be patient. As noted by Corinne Ball and Rene-Pierre Azria, European countries are
making positive changes in their bankruptcy and restructuring procedures, which are
being influenced by U.S. distress practitioners. Eventually, they hope to see the emerging
policies align more closely with U.S. bankruptcy processes. But the changes won’t take
place overnight. In the meantime, smart investors are doing their research to identify good
opportunities and strong partners.
24
Contributor Biographies
25
Rene-Pierre Azria is the President and Chief Executive Officer at Tegris Advisors.
Mr. Azria launched Tegris LLC in January 2008. Prior to founding Tegris, Mr. Azria
was a Global Partner with Rothschild worldwide and headed the Telecom practice of
Rothschild in the United States. Prior to joining Rothschild in 1996, Mr. Azria had
founded Blackstone Indosuez in 1987 and managed it until 1996, and was during that
period of time President of Financière Indosuez Inc. in New York. Prior to joining
Banque Indosuez in New York in 1985, Mr. Azria had started his banking career with the bank in Tokyo,
Japan in 1981. During over 30 years in Corporate Finance in North America, Asia, and Europe, Mr. Azria
has enjoyed extensive advisory experience, generally in transactions of large size and a high degree of
complexity. Mr. Azria is a generalist banker and speaks several languages. Mr. Azria holds an M.Sc. degree
(magna cum laude) from Ecole des Hautes Etudes Commerciales (France), a Bachelor of Mathematics from
University of Paris-Jussieu and an International Management Degree from London Business School and the
Stern Graduate School of New York University.
Corinne Ball is a Partner and Co-Head of the Global Business Restructuring and
Reorganization Practice at Jones Day. Corinne Ball has 30 years of experience in
business finance and restructuring, with a focus on complex corporate reorganizations
and distressed acquisitions, both court-supervised and extra judicial, including matters
involving multijurisdictional and cross-border enterprises. She is co-head of the New
York Office’s Business Restructuring & Reorganization Practice. Corinne led a team of
attorneys representing Chrysler LLC in connection with its successful chapter 11 reorganization, which
won the Investment Dealers’ Digest Deal of the Year award for 2009. She also led a team of attorneys in the
successful restructuring of Dana Corp., which emerged from bankruptcy in 2008, and has orchestrated
many other complex reorganizations involving companies such as Axcelis Technologies, Kaiser Aluminum,
Oceans Casino Cruise Lines, Tarragon, and The Williams Communications Companies. In addition,
she has counseled lenders and bondholders in the ABFS, Comdisco, Excite@Home, Exide SA, GST
Communications, Iridium, Loews, NorthPoint Communications, Telergy, VARIG Airlines, and Worldcom
restructurings, among others. Corinne also has advised on loans, acquisitions, and workouts involving
professional sports franchises, including the Charlotte Bobcats, the Detroit Redwings, the Minnesota Wild,
the New Jersey Devils, and the Phoenix Coyotes. Corinne leads the Firm’s distressed M&A efforts and
is the featured “Distress M&A” columnist for the New York Law Journal. Corinne won the Turnaround
Management Association’s “International Turnaround Company of the Year” Award and was named
“Dealmaker of the Year” by The American Lawyer and one of “The Decade’s Most Influential Lawyers”
by The National Law Journal. She is a director of the American College of Bankruptcy and the American
Bankruptcy Institute.
Kathryn A. (Katie) Coleman is a Partner in Hughes, Hubbard & Reed’s New York office,
is a member of the Corporate Reorganization Group, and has over 25 years’ experience
representing companies restructuring their financial affairs, both in and out of court.
Ms. Coleman has advised clients on, and litigated at the trial and appellate levels,
the significant legal issues inherent in modern restructuring and financial practice,
including contested plan confirmation, prepackaged plans, credit bidding, exclusivity,
use of cash, debtor-in-possession financing, valuation, adequate protection of security interests, and cash
collateral usage. Ms. Coleman frequently speaks on bankruptcy law and distressed investing, participating in
programs sponsored by Practising Law Institute, the American Bankruptcy Institute, California Continuing
Education of the Bar, the American Bar Association, the Pacific Bankruptcy Law Institute, the Western
Mountains Bankruptcy Law Institute, and the Norton Bankruptcy Litigation Institute. Ms. Coleman
graduated magna cum laude from Pomona College. She earned her J.D. from U.C. Berkeley’s Boalt Hall
School of Law.
26
Scott W. Edwards is a Managing Director and Head of Investor Relations and
Communications at Sun Capital Partners. Scott has more than 15 years of leveraged
buyout and mergers and acquisitions experience, having previously worked as a
Principal with Henderson Private Capital in London and as an Associate with GE
Equity and Advent International. He joined Sun Capital in 2005. Along with transaction
responsibilities, Mr. Edwards heads Sun Capital’s Investor Relations and Communications
team. He graduated cum laude with a degree in Finance from Georgetown University and has an M.B.A. from
the Tuck School of Business at Dartmouth College where he was designated a Tuck Scholar.
Amy Edgy Ferber is Partner at Jones Day. She focuses her practice primarily on the
representation of corporations in out-of-court restructurings and chapter 11 bankruptcies.
Her practice includes the representation of debtors, potential debtors, creditors’
committees, prepetition secured lenders, DIP lenders, and other significant creditors in
connection with restructurings and reorganizations. Amy has a broad range of experience
in these areas, including representing clients in distressed sales and acquisitions; secured
financings; negotiating, structuring, and implementing cash collateral orders and debtor in possession
financing agreements; chapter 11 plans; and out-of-court restructurings. She has cultivated industry-specific
experience in municipal bankruptcies, health care systems, cultural institutions, retail corporations, financial
institutions, and airlines. Amy is a member of the American Bar Association, Business Law Section; the State
Bar of Georgia; the State Bar of New York; the Savannah Bar Association; the New York City Bar Association;
the Atlanta Bar Association; the American Bankruptcy Institute; the Turnaround Management Association;
and the International Women’s Insolvency & Restructuring Confederation, and has published articles in
The RMA Journal and The Banking Law Journal. She serves as a Firm representative on the Lincoln Center
Business Council and was a member of the 2011 National MS Society Leadership Class.
Michael Fieldstone is Partner at Aterian Investment Partners where he is involved with
the investment and portfolio company activities of the firm. Aterian is a private capital
firm that invests in small to middle market companies that are financially or operationally
constrained. We seek to partner with businesses generating $25 million to $500 million
in annual revenues, with strong, proven franchises in need of up to $50 million of control
or non-control capital. Prior to founding Aterian in 2009, Mr. Fieldstone was a Principal
at Sun Capital Partners where he was involved with numerous transactions, including acquisitions, mergers,
recapitalizations, financings and exits representing over $500 million of capital deployed and over $3.0 billion
in financings. Mr. Fieldstone was previously a Principal at Apollo Management involved with the diligence of
several investments including the closing of the $1.0 billion acquisition of Resolution Performance Products,
a specialty chemical company of Shell Oil. Mr. Fieldstone began his career at Salomon Smith Barney as a
generalist in the Mergers and Acquisitions Investment Banking group. Michael graduated from The Wharton
School of the University of Pennsylvania with a concentration in Finance and Accounting.
27
Thomas D. Hayes III is a Founding Principal of NHB Advisors, Inc. During his tenure,
he has provided leadership as interim Chief Executive Officer, Chairman or Advisor to
the Board in a wide variety of companies both private and public. He is an Honorary
Inductee in the “Turnaround Management, Restructuring and Distressed Investing
Industry” Hall of Fame. He has extensive experience in manufacturing, distribution,
operations, accounting, restructuring, refinancing and litigation. His litigation and
expert witness work includes The Penn Central Boston Perishable Litigation and as the Trustees expert in
the Merry-Go-Round vs. Ernst and Young litigation. Mr. Hays is Principal in charge of NHB’s Auto Dealer
Group. Mr. Hays began his career in 1969 as a CPA with Arthur Andersen and advanced to 3M and Conrail.
He began his independent consulting career as a special consultant and expert witness for Penn Central
Company. His responsibilities with Penn Central involved developing theories and negotiating the eventual
dismissal of over 7,500 lawsuits. In 1981, Mr. Hays founded a specialized printing company which he sold to
a national multi-faceted competitor. Mr. Hays then specialized in complex turnaround assignments. His early
assignments included rationalization of a regional tile retailer and distributor, coordination of an accounting
malpractice case (overstatement of inventory), investigation of bankruptcy fraud for the railroad industry
and development of debt reduction strategies. His major assignments over the last several years include using
Chapter 11 as a tool for corporate renewal, out of court workouts, use of a reverse merger as vehicle for a sale
and acting as an Examiner in Bankruptcy. Mr. Hays received his Bachelor of Science degree in Accounting
from the University of Minnesota and went on to complete his MBA course work.
Roberto Kampfner is a Partner in the White and Case’s Financial Restructuring and
Insolvency Group. Mr. Kampfner is a partner in the Firm’s Financial Restructuring and
Insolvency Group and has experience representing parties at all levels of the capital
structure. Indeed, Mr. Kampfner has represented a broad array of the debtors, creditors
and other parties-in-interest in both in and out of court restructurings. Some of his
debtor representations include Mirant Corporation, WCI Communities, and Otero
County Hospital. On the creditor side, Mr. Kampfner represented Wells Fargo Bank as agent in the Guy F.
Atkinson Company bankruptcy, JPMorgan chase as agent in the Fleming Corporation bankruptcy, and the ad
hoc committee of bondholders in the Six Flags bankruptcy. He also has extensive experience in cross border
restructurings: Philippine Airlines, Corporación Durango, a major paper producer in Mexico, ILFC in the
chapter 15 proceedings of Mexicana Airlines, and Metrofinanciera, a major mortgage lender in Mexico, in its
chapter 15 proceedings in the US.
Peter S. Kaufman is the President of Gordian Group. Mr. Kaufman has been at Gordian
Group since 1990. Prior to joining the firm, he was the founding Co-chairman of the
Committee on Investment Banking of the American Bankruptcy Institute (ABI). With
Henry Owsley, Gordian Group’s Chief Executive Officer, he is the co-author of the
definitive work in the field, Distressed Investment Banking: To the Abyss and Back.
Additionally, Mr. Kaufman has been profiled by The Deal, where he is consistently ranked
as one of the 10 leading national investment bankers in financial restructurings. He is national TV’s go-to
authority for restructuring and bankruptcy views. Prior to joining Gordian Group, Mr. Kaufman was a
founding member of First Boston Corporation’s Distressed Securities Group. As an investment banker and
attorney, he has more than 25 years of experience solving complex financial challenges. Mr. Kaufman received
a B.A. with honors in History and Art History from Yale College (where he won letters in varsity lacrosse). He
also received a J.D. from the University of Virginia School of Law, where he graduated in the top quarter of
his class.
28
Albert Kass is Vice President at Kurtzman Carson Consultants. Albert drives the strategic
development and implementation of KCC’s corporate restructuring services, maximizing
the scope and value of the company’s suite of Chapter 11 service offerings. Prior to his
role as Vice President, he served as a Senior Consultant utilizing his extensive bankruptcy
experience in the day-to-day case management of KCC’s most complex engagements.
Previously, Albert represented debtors and official committees in Chapter 11 restructuring
engagements as an associate in the Restructuring Group of Kirkland & Ellis LLP. While at the firm’s New York
office, he worked on cases including Calpine Corporation, Collins & Aikman Corporation, Solutia, Inc. and
Wellman Inc. Admitted to practice law in New York and New Jersey, Albert earned his Juris Doctor from
Fordham University School of Law. While serving as an editor of the Fordham Urban Law Journal, he was
awarded the Archibald R. Murray Public Service Award. Albert received his Masters in Public Administration
from New York University Robert F. Wagner Graduate School and holds a Bachelor of Arts in History from
the University of Michigan.
Larry H. Lattig is President of Mesirow Financial Consulting, LLC, one of the nation’s
leading financial advisory service firms. He has over 30 years of experience advising
creditors’ committees in bankruptcies, lenders in workout situations, companies and
creditors in liquidations, buyers and sellers in mergers and acquisition transactions,
and parties in financing and financial transactions. Mr. Lattig has worked extensively
on restructuring plans with financial institutions, including Homeland Holdings Corp.,
Linc Capital, Inc., FINOVA Capital Corporation and BankVest Capital Corporation. He has also advised
companies in the restructuring of Trans World Airlines, Inc., Adesta Communications, Inc. (Adesta LLC),
and various companies in other industries. He has served as chief restructuring officer in a number of public
and private companies in both bankrupt and out-of-court restructurings. He has served as a Litigation
Trustee appointed by a Federal Bankruptcy Court for litigation associated with a Plan of Reorganization.
Mr. Lattig had held numerous corporate executive positions, including treasurer, chief financial officer,
vice president of mergers and acquisitions, vice president of strategic marketing, vice president of investor
relations, chief operating officer and president in both private and NYSE listed public companies. Mr. Lattig
has written articles for several industry publications and has been a featured speaker at industry conferences.
Mr. Lattig has served as a speaker in the areas of treasury, high tech, consumer finance, automotive, airlines,
corporate governance and the obligations of officers and directors in troubled companies.
Sharon L. Levine is a Partner at Lowenstein Sandler. She has been at the forefront of some
of the largest and most complex bankruptcy cases in recent years, and she has earned a
national reputation among clients and peers as a tenacious and accomplished bankruptcy
lawyer. She is highly regarded for her litigation and negotiation skills in the practice
of restructuring, debtor-creditor law and bankruptcy litigation; her representations
include purchasers, debtors and creditors (committees and individuals). Sharon has a
well-established reputation as a formidable force in bankruptcy courts across the country, where she has
tried contested and litigated matters in venues including federal bankruptcy courts in New York, Delaware,
California, Texas and New Jersey, among many others. Sharon is a frequent lecturer on various bankruptcy
topics and serves as Co-Chair of the Trade Credit Committee of the American Bankruptcy Institute (ABI),
and as a member of the Board of Trustees and the Women’s Committee of the Turnaround Management
Association. She also serves as Co-Chair of the Labor and Benefits Issues Advisory Committee to the ABI’s
Commission to Study the Reform (amend or modify) of the Bankruptcy Code treatment of Pension and
Retiree Medical Benefits. She is active in serving her community and is on the Board of Trustees for the State
Theatre Regional Art Center in New Jersey and on the Advisory Board of Women’s Campaign International.
29
Nancy A. Peterman is Chair of the Greenberg Traurig’s Chicago Business Reorganization &
Financial Restructuring Practice. Nancy is a member of the Executive Committee and the
Board of Directors of the American Bankruptcy Institute and former chair of the Chicago
Bar Association’s Bankruptcy & Reorganization Committee. Nancy assisted in drafting
the healthcare bankruptcy provisions of the 2005 amendments to the Bankruptcy Code.
A frequent speaker and author, Nancy was co-editor in chief of Wiley Bankruptcy Law
Update, assistant editor for West’s Norton Bankruptcy Law and Practice treatise, and an assistant editor and a
contributing author for the American Bankruptcy Institute’s Health Care Insolvency Manual. Nancy is a Fellow
in the American College of Bankruptcy, listed in Chambers USA Guide, Legal 500, Best Lawyers in America,
and is a Board Certified Business Bankruptcy Lawyer by the American Board of Certification. She earned
her law and undergraduate degrees from the University of Michigan. She focuses her practice on corporate
restructurings, bankruptcy and creditors’ rights law, and has a wide range of experience representing debtors,
purchasers of assets, committees and secured creditors.
Christopher L. Picone Christopher L. Picone is the Founder, President and General
Counsel of Picone Advisory Group, LLC, a full service financial advisory firm serving
an international client base. Chris has significant experience in all phases of financial
restructurings, operations, turnaround situations, bankruptcy, liquidations, litigation
support matters, real estate development, construction and asset management. His legal
and business career encompasses over 30 years, serving in various executive management
positions and as a trusted advisor to businesses of all sizes in a variety of different industries. Chris began
his career with a Chicago based law firm where he focused his legal practice in the areas of Corporate
Transactions, Federal Income Tax matters and Real Estate. Following over a decade of private law practice,
Chris moved to the corporate sector serving as President, Chief Operating Officer and General Counsel for
several large Chicago based firms. Among his recent roles, Chris served as the Chief Restructuring Officer in
the Sea Launch Company (an international telecommunications satellite launch firm) Chapter 11 proceeding.
He also served as Financial Advisor to TVI Corporation (a manufacturer of powered air respirators, gas masks
and filters, specialized shelters and mobile mortuary systems) in its Chapter 11 proceeding. In addition, Chris
has supervised the liquidation of numerous businesses in and out of bankruptcy, including currently serving as
Chief Wind Down Officer in the Northstar Aerospace (USA), Inc. bankruptcy. Chris is also currently serving
as the Settled Claims Trustee in a high profile product liability national class action involving a salmonella
tainted food additive. Chris earned his Juris Doctor (with Distinction) from the John Marshall Law School,
Chicago, Illinois. Chris also holds an LLM (Taxation) from DePaul University of Chicago. Chris earned his
Bachelor in Business Administration from Loyola University of Chicago. Chris is a member of The American
Bankruptcy Institute (“ABI”) and Turnaround Management Association (“TMA”).
William Repko is a Senior Advisor and a Co-Founder of the Evercore Partners’
Restructuring and Debt Advisory Group with 36 years of relevant experience. Prior to
joining Evercore, Mr. Repko served as chairman and head of the Restructuring Group at J.P.
Morgan Chase, where he focused on providing comprehensive solutions to clients’ liquidity
and reorganization challenges. Mr. Repko entered the workout banking world in 1980 at
Manufacturers Hanover Trust, which after a series of mergers became part of J.P. Morgan
Chase. Notable clients include General Motors, MGM Mirage, Swift Transportation, Danaos, TORM, United
Airlines, Enron, WorldCom, Chrysler, IBM, Waste Management, Goodyear, El Paso, Kmart, Texaco, Federal
Mogul, Southern California Edison and Lucent Technologies. Mr. Repko has been named to the Turnaround
Management Association (TMA)-sponsored Turnaround, Restructuring and Distressed Investing Industry
Hall of Fame. Mr. Repko has a B.S. from Lehigh University.
30
Durc Savini is a Managing Director and Head of the Restructuring and Recapitalization
Group. A veteran banker in the restructuring advisory business, Durc A. Savini joined
PJSC in 2010. During the course of his distinguished 20-year career at Miller Buckfire,
Dresdner Kleinwort Wasserstein, its predecessor Wasserstein Perrella, Bear Stearns and
CIBC Wood Gundy Securities, Inc., Mr. Savini led restructurings, mergers, acquisitions
and debt and equity raising transactions on behalf of a wide variety of clients. At Miller
Buckfire, he led that firm’s industry-leading auto supplier advisory effort and chaired the firm’s Valuation
and Commitment Committees. Mr. Savini’s restructuring clients have included Lear Corporation, Sunbeam
Corporation, Dana Corporation, Polaroid, Burlington Industries, Dura Automotive Systems, Clayton
Dubilier & Rice, JL French Automotive Castings, Meridian Technologies, Oxford Automotive, Avado
Brands, Cambridge Industries, Allied Holdings, CenterPoint Energy, IMPATH, Inc., and Favorite Brands
International, among others. Mr. Savini received his M.B.A. degree with concentrations in finance and
accounting from the University of Chicago Graduate School of Business and a B.A. degree in Economics
from Columbia University.
Dennis J. Shaughnessy is Chairman of the Board at FTI Consulting, Inc. Dennis has
been Executive Chairman of the Board at FTI Consulting, Inc. since 2004, a period in
which the firm’s revenues and Adjusted EBITDA have approximately tripled. From 1989
to 2004, he was a General Partner of private equity firm Grotech Capital Group, Inc.,
where he managed approximately $1 billion in private equity funds. Prior to joining
Grotech, he was Chief Executive Officer of CRI International Inc., a petroleum refining
services business that was sold to Shell Oil in 1989. Mr. Shaughnessy started his career at Mercantile Bank,
leading both its Corporate Financial Services Group and Personal Services Division. Mr. Shaughnessy
is a Director of TESSCO Technologies Incorporated, an innovative wireless technologies supplier. Mr.
Shaughnessy graduated from the University of Virginia with a Bachelor of Arts degree and received his Juris
Doctorate degree from the University of Maryland School of Law.
Steve Shimshak is a Partner in Paul Weiss’s Bankruptcy and Corporate Reorganization
Department. Steve Shimshak’s practice includes U.S. and foreign insolvency proceedings,
as well as restructurings and workouts involving debtors, creditors (including financial
institutions, industry players and others), court-appointed liquidators, trustees, asset
purchasers and private equity investors. Recent engagements include representation
of Citigroup in connection with MF Global, Lehman Brothers, Tribune, Chrysler and
Enron; Bicent Holdings and its affiliates, owner and operator of a portfolio of electric generation plants
and power industry services businesses, in connection with their pre-arranged chapter 11 cases; Oak Hill,
in the restructuring of Southern Air through a pre-arranged chapter 11 case; Ericsson in a series of asset
purchases from Nortel, including Rockstar Bidco Consortium’s $4.5 billion patent acquisition; and Major
League Baseball in the Texas Rangers chapter 11 case. Steve was appointed a fellow of the American College
of Bankruptcy in 2008 and is regularly recognized as a leading bankruptcy and corporate restructuring
lawyer in New York by peer review organizations Chambers USA, Best lawyers in America, Legal 500 and
others.
31
Merrill DataSite is a secure virtual data room (VDR) solution that
optimizes the due diligence process by providing a highly efficient
and secure method for sharing key business information between
multiple parties. Merrill DataSite provides unlimited access for users
worldwide, as well as real-time activity reports, site-wide search at
the document level, enhanced communications through the Q&A feature and superior project
management service - all of which help reduce transaction time and expense. Merrill DataSite’s
multilingual support staff is available from anywhere in the world, 24/7, and can have your VDR
up and running with thousands of pages loaded within 24 hours or less.
With its deep roots in transaction and compliance services, Merrill Corporation has a cultural,
organization-wide discipline in the management and processing of confidential content. Merrill
DataSite is the first VDR provider to understand customer and industry needs by earning an
ISO/IEC 27001:2005 certificate of registration – the highest standard for information security –
and is currently the world’s only VDR certified for operations in the United States, Europe and
Asia. Merrill DataSite’s ISO certification is available for review at: www.datasite.com/security.
htm.
As the leading provider of VDR solutions, Merrill DataSite has empowered nearly 2 million
unique visitors to perform electronic due diligence on thousands of transaction totaling trillions
of dollars in asset value. Merrill DataSite VDR solution has become an essential tool in an
efficient and legally defensible process for completing multiple types of financial transactions.
Learn more by visiting www.datasite.com today.
The M&A Advisor was founded in 1998 to offer insights and
intelligence on middle market M&A activities. Over the past fifteen
years we have established a premier global network of M&A,
Turnaround and Finance professionals. Today we have the privilege of presenting, recognizing
the achievements of, and facilitating connections among the industry’s top performers
throughout the world with a comprehensive range of services including:
M&A ADVISOR SUMMITS. Exclusive gatherings of the industry “thought leaders”
M&A ADVISOR AWARDS. Recognizing excellence and accomplishments of the leading firms
and professionals.
M&A CONNECTS. Direct connection service for domestic and international dealmakers and
service providers.
M&A ALERTS. Delivering relevant news and the industry leader’s perspective.
MandA.TV. Reporting on the key industry events and interviewing the newsmakers.
M&A MARKET INTEL. Comprehensive research and reporting on the key issues facing the
industry.
M&A LINKS. The industry’s largest global network of M&A, Financing and Turnaround
Professionals.
To learn more about the M&A Advisor’s leadership services contact info@maadvisor.com
32
Best Practices of the best DealMAKERS
Profiling the proven strategies and unique experiences of the leading M&A practitioners,
“The Best Practices of The Best M&A Dealmakers” series is distributed in regular
installments for M&A industry professionals in both print and interactive electronic
media. Previously published features and chapters are also available in the online library of
Merrill DataSite and The M&A Advisor.
33

OppOrtunity and risk: uncOvering and Winning the distressed deal

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